Why Kibaki may not sign MPs’ new pay perks into law

MPs’ decision to award themselves Sh2.1 billion in severance pay met strong opposition from the government, signaling that the Bill may not get presidential assent.
Official record of the debate that preceded the vote shows that the deputy leader of government business, Amos Kimunya, fronted the attack on amendments to the Salaries and Remuneration Act that allowed MPs to award themselves a hefty severance pay on Thursday night.
Yatta MP Charles Kilonzo moved the amendment to Section 26 of the Salaries and Remuneration Act — technically allowing Parliament to determine the pay perks of its members and those of other public officers.
The MPs also passed amendments to Section 25 of the Commission on Revenue Allocation Act barring the commission from making any regulations unless a draft of the same has been approved by Parliament.
Abdikadir Mohammed, the chairman of the Parliamentary Committee on the Implementation of the Constitution, Monday confirmed amendment to Section 26 of Salaries and Remuneration Act saying there was nothing wrong with it.
The new provision bars the commission from “interfering with the salaries and remuneration of legislators and other staff of the National Assembly.”
“There is debate out there about legislators awarding themselves Sh2.1 billion but it should be clear that Parliament has the final say on the salaries of its members, officials and other public officers such as judges,” Mr Mohammed told the Business Daily.
“The Salaries and Remuneration Commission has no business in determining what parliamentarians take home. Only the courts can stand in our way on this matter,” the MP said.
The Salaries and Remuneration Commission is established under Article 230 of the Constitution and has powers to set and regularly review salaries and benefits of all state officers.

It is also mandated to advise national and county governments on the remuneration and benefits of all other public officers while keeping an eye on the total public compensation bill.

A review of the Hansard (the official record of parliamentary proceedings) showed that the government opposed amendments to the Salaries and Remuneration Act and the Commission on Revenue Allocation Act.

“I am not sure that we can be passing these amendments here within the framework of the Finance Act when they have far-reaching implications because we will then be getting ourselves into trouble with the Constitutional Implementation Commission (CIC),” said Mr Kimunya who is also the Minister for Transport.

“Since we are now getting into constitutional commissions and then determining what they need to do without consultation with the CIC and with the Committee on the Implementation of the Constitution, unless the chairman of the Committee can convince us that perhaps they have had the opportunity to look at them. I would be very careful that we do not amend laws to do with the Constitution.”

However, Mr Mohammed downplayed Mr Kimunya’s concerns, saying Parliament had powers to tackle the twin issues.

“The reason I am comfortable with this is because it is asking for rules and regulations to be brought to the House for approval. Indeed, the way we are going, all rules and regulations made by anybody eventually have to come to the House. Law-making is the preserve of the House,” he said.

The discreet manner in which the MPs introduced the amendments for extra pay into the Finance Bill 2012 and its speedy passing has dominated the news since Friday.

The item was not listed in the order paper nor was it debated by legislators but was unanimously passed by acclamation. Adan Keynan, who serves as the vice chair of the Parliamentary Service Commission, moved the amendment to the Finance Bill that requires the Treasury to calculate severance allowance at 31 per cent of the MPs pay, including their tax-free allowances.

The computation will be based on their basic pay of Sh200,000 and all allowances except sitting allowance.

The amendment has however run into a strong opposition, including from the Commission on the Implementation of the Constitution, whose chairman, Charles Nyachae, has declared it “an illegality that contravened the Constitution” and vowed to challenge it in court. Mr Nyachae said the commission would also seek to have parliamentarians and any other persons who participated in passing the amendments be declared unfit to hold public office.

The Salaries and Remuneration Commission said it would seek a review of the decision.

“Our secretariat is studying the amendments and we shall have a meeting on Wednesday (tomorrow) after which a comprehensive statement will be issued on the matter,” the commission’s vice chairman Daniel Ogutu said.

Some politicians, including Prime Minisiter Raila Odinga, his deputy, Musalia Mudavadi, and Gichugu MP Martha Karua have opposed the amendments.

Mr Mudavadi urged Parliament to review the amendment to the Finance Bill saying it does not augur well for a country that is just emerging from labour unrest in the public sector.

“In view of the existence of the Salaries Review and Remuneration Commission and agitation by the public, parliament may have sent a negative signal with this award. I ask the President to hold his assent to allow the agency do its work,” he said. “The president should reconsider the Bill with the proposition for possible amendments. Salaries Remuneration and Review Commission should be proactive and come on board actively to prevent such actions in future.”

Paul Muite, a lawyer, termed the MPs pay deal “immoral” coming in the wake of protracted strikes by public servants. “The creation of the Salaries and Remuneration Commission in the new Constitution was informed primarily by MPs greed when fixing their salaries and allowances,” he said in a statement.

Mr Muite reckoned that the National Assembly (Remuneration) Act on which the Parliamentary Service Commission purports to rely in giving MPs such pay raises was in conflict with Article 230 that constituted the Salaries and Remuneration Commission and its mandate.

“Article 2 provides that any Law inconsistent with any provision of the Constitution is null and void to the extent of such inconsistency. Accordingly, The National Assembly (Remuneration) Act became null and void on the date the New Constitution was promulgated on August 27, 2010, to the extent that it permits MPs to fix their salaries and allowances,” he said.

Mr Muite said that MPs, the National Assembly and the Parliamentary Service Commission have abused their privileges and disregarded all rules of decency and conflict of interest in purporting to yet again enact increases to their pay and allowances.

[email protected]